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[2014] ZALAC 63
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Mveltrans (Pty) Ltd t/a Bojanala Bus Services v Pule and Others (JA 72/13) [2014] ZALAC 63 (23 October 2014)
REPUBLIC OF SOUTH
AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case
no:
JA 72 /13
In the matter
between:
MVELATRANS
(PTY) LTD T/A BOJANALA BUS
SERVICES
........................................
Appellant
and
JACKSON
PULE AND
OTHERS
......................................................................................
Respondents
Heard:
19 August 2014
Delivered:
23 October 2014
Summary: Employee
embarking on an unprotected strike- Employer obtaining court
interdict- employer issuing ultimatum for employees
to return to work
– some employees failing to return to work and dismissed-
Labour Court finding ultimatum too short to enable
employees to
return to work and that dismissal substantively unfair. Appeal-
evidence showing that some employees had time to report
to work after
ultimatum was read- some dismissed employees’ evidence as to
why they did not report to work not plausible
thereby rendering their
dismissal substantively fair. Employees whose evidence found
plausible for not reporting to work reinstated.
Appeal partly upheld.
Coram: Waglay JP,
Musi JA et Dlodlo AJA
JUDGMENT
MUSI JA
[1]
This is an unopposed appeal against the
judgment and order of the Labour Court to the effect that the
dismissal of the respondents
was substantively unfair. The appellant
also appeals against the order re-instating Mr Jackson Pule, in the
event this Court finds
that his dismissal was substantively unfair.
[2]
The respondents embarked on an unprotected
strike from 11am on 17 November 2009 to 20 November 2009. On 20
November 2009, the Labour
Court declared the strike an unprotected
strike and interdicted the respondents from participating in it.
During the afternoon
of 20 November 2009, the appellant issued an
ultimatum requesting the respondents to return to their work-stations
by 15h00. According
to the appellant, the respondents failed or
refused to do so and they were subsequently issued with notices to
attend a disciplinary
hearing to face the following charges:
i)
Failure to comply with a court order, and
ii)
Failure to adhere to an ultimatum.
[3]
On the date of the disciplinary hearing,
the respondents attended with their attorney. An unsuccessful
application was made to have
them represented by him. The respondents
thereafter successfully applied for a postponement of their hearing
to 03 December 2009.
On 03 December 2009, after skirmishes with the
chairman of the disciplinary enquiry, the respondents, represented by
their co-workers,
applied for the chairman’s recusal. The
application was refused. The respondents refused to take part in the
hearing. The
hearing proceeded in their absence and they were
subsequently found guilty and dismissed.
[4]
The respondents referred a dispute to the
Commission for Conciliation Mediation and Arbitration (CCMA). The
CCMA ruled that it had
no jurisdiction to adjudicate the dispute
because the parties to the dispute were parties to the South African
Road Passenger Bargaining
Council (SARPBAC). The CCMA referred the
dispute to the SARPBAC. Conciliation failed at the SARPBAC. The
SARPBAC issued a certificate
to the effect that the dispute was
unresolved and that it may be referred to the Labour Court. The
respondents referred the dispute
to the Labour Court.
[5]
At the Labour Court, some of the
respondents were represented by Mr Modisakeng and the others by Mr
Mooki instructed by Wright Rose
Innes Inc. Two pre-trial minutes were
filed, because,
inter alia
,
the different group of respondents put different issues in dispute.
More about this later. Now to the factual matrix.
[6]
The appellant conducts a commuter bus
service for and on behalf of the Northwest Provincial Government
(NPG). It had been a parastatal
until it was bought by Unitrans
passenger (Pty) Limited (Unitrans). The sale agreement provided that
15% of the shares of the appellant
had to be held in trust for the
benefit of its employees. The Bojanala employee share trust was
formed which held 15% of the issued
shares in Mvelatrans (Pty) Ltd.
Following complaints that this was not benefiting employees, the 15%
shares were bought by the
appellant in a deal that was sanctioned by
the National Government, the NPG, SATAWU and TAWUSA and the employees
were, according
to the appellant, paid out the full value of their
shares. The employees were of the view that they were not paid out
what was
due to them.
[7]
It is common cause that approximately 85%
of the appellant’s employees were members of the South African
Transport and Allied
Workers union (SATAWU) and 5% were members of
the Transport and Allied Workers Union (TAWUSA). Both trade unions
were recognised
as collective bargaining agents. Bargaining in
respect of terms and conditions of employment occurred centrally, at
the SARPBAC.
[8]
The appellant conducted its business from
two depots, to wit Tlhabane and Mogwase. It employed approximately
640 employees. The
contract between the appellant and the NPG,
inter
alia
, provided for penalties to be
imposed by the NPG in respect of trips not completed or provided by
the appellant. The appellant
was paid per kilometre driven and it
also earned revenue from the sale of tickets to commuters. Depending
on how late the service
ran, the penalty could be between 25% and 40%
of what would have been paid for the trip. The respondents were aware
that the appellant
would suffer penalties in the event of cancelled
trips.
[9]
On 11 November 2009, at the instance of the
unions, a meeting was held between the unions and the appellant,
represented by its
Operations Manager Mr Simon Motitsoe. The
appellant was given a written list of complaints. The complaints were
the following:
i)
Salary adjustment
ii)
15% shares
iii)
Printout of offer statement (on notice
board)
iv)
Damage on moving hazard (refunds)
v)
Adjustment on subsistence and travel
allowance.
Motitsoe informed
the unions’ delegations that he would revert to them.
[10]
On 17 November 2009 at approximately 11h00,
the bus drivers at Tlhabane stopped working. They demanded feedback
from Motitsoe. He
informed them that some of their complaints related
to substantive issues that could not be addressed at plant level.
[11]
With regard to the 15% shares, he informed
them that the issue should be pursued via a High Court order because
the appellant was
of the view that the workers had been paid what was
due to them. The printout related to the workers’ demand that a
printout
relating to payments made should be placed on notice boards.
Motitsoe informed them that the documents relating to the payments
to
each employee would not be placed on the notice boards, due to their
size but that the documents may be perused and inspected
at the Human
Resources Department.
[12]
After lunch time, the drivers were joined
by workers from other departments. They all congregated within the
depot and refused to
go back to work. The next day, employees at the
Mogwase depot also congregated within the depot and refused to work.
[13]
The workers presented another set of
demands setting out the amount of money they sought by way of salary
and subsistence and travel
allowance adjustments.
[14]
At approximately 18h00, Grant Fleetwood,
the Group Human Resources Manager of Unitrans arrived at the Tlhabane
depot. Another set
of demands were given to him relating to cell
phone, housing and car allowances, bonuses, refund on leave days and
a complaint
on outsourcing security guards. The last complaint
related to a decision by the appellant to outsource its security
section and
allocating other duties to its in-house security
personnel. The erstwhile in-house security personnel demanded a
severance package
although they were not retrenched but were
allocated new jobs within the appellant at the same or better terms
and conditions.
[15]
The unions were contacted. They spoke to
their members but they would not listen to them. The unions agreed
with the appellant that
the actions of the workers were unacceptable.
The workers indicated that they did not wish to be represented by
their respective
unions anymore. The unions distanced themselves from
the actions of the striking employees. On 19 November 2009, more than
300
employees terminated their union membership. They indicated that
they have appointed Rocky Modisakeng Attorneys as their legal
representatives and that all further correspondence should be
addressed to their attorneys.
[16]
On 20 November 2009, Cele J issued a rule
nisi
returnable
on 11 November 2010 in the following terms:
‘
1.1.
The withholding of their services by the individual respondents with
effect from 11h00 on 17 November 2009 to be an unprotected
strike as
contemplated in Section 68 of the Labour Relations Act (sic)
1.2.
Interdicting and restraining the individual
respondents from participating in such an unprotected strike...
1.4.
Interdicting and restraining the individual
respondents from interfering with the business operations of the
applicant...
2
The relief set out in prayers 1.1 to 1.5 above operate as an interim
order with immediate effect pending the finalization of this
application...’
[17] The learned
Judge also ordered that the order be served by facsimile to the
unions and upon the individual respondents by the
sheriff of the High
Court alternatively a duly authorised employee of the appellant
reading out the terms and conditions of the
order to such of the
individual respondents who may be present at the appellant’s
premises and handing a copy to such of
the respondents who may
request such a copy and by affixing a copy of the order to a notice
board in a prominent place at the appellant’s
premises.
[18] Mr Modisakeng
was present at court when the order was granted. Mr Fleetwood took a
copy of the court order, drafted an ultimatum
at his offices and sent
both the order and the ultimatum to Tlhabane and Mogwase. The
ultimatum reads as follows:
‘
1.
In terms of the Labour Court order dated 20 November 2009 the court
has ordered that the industrial action by the employees is
unprotected and illegal.
2.
The company has requested immediate
intervention of (sic) the unions SATAWU and TAWUSA both union have to
date failed to intervene
and distanced themselves to (sic) the
industrial action by employees.
3.
Employees are hereby instructed to return
work for the afternoon shift of 20 November 2009.
4.
Participating in illegal or unprotected
industrial action is a serious misconduct and the company will take
disciplinary action
against those engaged in said (sic) misconduct.
This will lead to the dismissal of employees.
5.
The company will also take disciplinary
steps against those who failed to adhere to this ultimatum and if
failed (sic) to return
to work by 15h00 on 20 November 2009 this will
lead to the dismissal of employees.’
[19] The ultimatum
was read at both depots and the majority of the employees adhered to
it and returned to work. The appellant
alleged that the respondents
did not adhere to the ultimatum. As stated above, a disciplinary
hearing was held and the respondents
were dismissed. Employees who
had been on strike but returned to work by 15h00 were issued with
final written warnings. Some employees
who did not return to work at
15h00 provided the appellant with reasons why they had not done so
and they too were issued with
final written warnings.
[20] In the court
a
quo,
the respondents who were represented by Mr Modisakeng
admitted, that the ultimatum was communicated to them at
approximately 13h00
along with the fact that an interdict had been
granted against the unprotected strike. They also agreed that the
court order and
ultimatum were read out to the striking employees at
both depots, by members of the SAPS who also translated the
documents, and
that copies of the ultimatum were also handed out to
the employees. These admissions were recorded in the pre-trial
minutes. They
also did not challenge the fairness of the ultimatum.
They proffered various reasons why some of the individual employees
did not
adhere to the ultimatum and that the others did adhere to the
ultimatum, and returned to their workplaces after it was read out.
They also contended that some adhered to the ultimatum but were
locked out thereby making it impossible for them to report to their
respective workstations.
[21] They alleged
that their dismissal was substantively unfair because there was no
valid basis for the appellant to selectively
dismiss them when other
employees who participated in the strike were not dismissed. They
further alleged that their dismissal
was procedurally unfair because
they were denied representation of their choice.
[22] The respondents
who were represented by Mr Mooki alleged that the ultimatum was read
out just before 15h00 at the Tlhabane
depot and after 15h00 at the
Mogwase depot and not at approximately 13h00 as contended by the
appellant. These respondents contended
that their dismissals were
substantively unfair because:
i) Those who were
aware of the ultimatum returned to work
ii) Some of them
were not at work when the ultimatum was read
iii) Those who were
aware of the ultimatum were not given sufficient time to reflect on
the ultimatum
iv) Not all striking
employees were dismissed
(v)
Some employees recorded as dismissed
remained employed.
[23] They contended
that their dismissal was procedurally unfair because they were not
allowed a representative of their own choice,
despite the terms of
the notice of the disciplinary hearing. They further contended that
they were not advised of their right to
appeal their dismissal.
[24] The allegations
of compliance and the reasons for non-compliance with the ultimatum
necessitated the calling of numerous witnesses
to testify on behalf
of the respondents and the appellant. On 12 September 2011, Van
Niekerk J issued the following order:
‘
The
application for postponement is refused and the matter will resume on
Thursday, and 15 September 2011 at 10h00.
1.
In respect of the applicants represented by
Rocky Modisakeng Attorneys, these applicants are to provide the
attorney of the respondent
with affidavits setting out their
challenge to the substantive fairness of the dismissal, by no later
than 13h00 on Wednesday 14
February 2011.
2.
Those applicants who are not represented by
Rocky Modisakeng Attorneys, are to report at the SASLAW pro-bono
office tomorrow, 13
September 2011 at 10h00.
3.
On resumption of the matter, the
correspondent will cross-examine the applicants, in so far as it
deems necessary, and lead rebutting
evidence, in so far it deems
necessary
4.
On conclusion of the evidence, the parties
will argue both on procedural and substantive issues.’
[25] The parties
complied with Van Niekerk J’s order. Mr Modisakeng, for
convenience it seems, lumped the respondents with
the same or similar
reason for non-compliance or alleged compliance, together and
requested one of them to depose to an affidavit.
Mr Mooki on the
other hand called all the respondents that he represented. The
appellant called witnesses to rebut most of the
respondents’
evidence.
[26 Mr Joseph
Nokwane deposed to an affidavit to the effect that he and his
colleagues went home early (before the ultimatum was
read) because it
was raining and they were locked out of the premises. They did not
know anything about the ultimatum and reported
for duty on the next
working day. The fellow workers the referred to were Willy Motshegoa,
Markus Sekete, Moirapula Nechodemus,
Lucky Molatlhegi, Shapie
(Thomas) Mathabathe, Modisakeng and Mngomane Bornwise.
[27] He testified
that it was raining on 20 November 2009. He has high blood pressure
and takes medication for hypertension. Due
to the strike he slept at
the Tlhabane depot and did not go home. As a result, he had not taken
his medication for four days. On
20 November 2009, he felt dizzy and
he went home to take his medication. He was not at the depot when the
ultimatum was read. During
cross-examination he testified that only
Lucky Molatlhegi and Skapie Mathabathe were with him on 20 November
2009. According to
Mr Nokwane, Lucky Molatlhegi and Mr Skapie
Mathabathe left the depot before the ultimatum was read. No rebutting
evidence was led
in respect of Nokwane’s evidence.
[28]
Bertha Mfulwane deposed to an affidavit wherein she stated that the
“ultimatum was read and we all went to work immediately.
We
then went home and reported back on the following work date.”
She also stated that Lipkin Lamola, Titus Modibedi, Kenneth
Kwena,
Pinky Matome, Lizzy Khuonou and Lucky Mpipi also went to work
immediately. In her evidence -in- chief, she testified that
the only
knowledge she had of the other workers’, whom she mentioned in
her affidavit, version is what she heard at their
attorney’s
offices. During cross-examination she confirmed that she and Pinky
Matome are supervised by Mr R T Pretorius.
When it was put to her
that Pretorius will testify that Pinky Matome did not report to him
after the ultimatum was read she responded
by saying that Pinky will
testify on her own behalf. She further testified that she did not
know who the supervisors of the other
employees were or in which
department(s) they were employed.
[29]
Pretorius testified that Ms Mfulwane and Ms Matome did not comply
with the ultimatum but arrived at 16h00 at the depot with
a spar
plastic bags which contained groceries.
[30]
Mr Paul Malekutu deposed to an affidavit wherein he stated that he
and his colleagues, Joseph Phalale, Mathews Makgwana, Godfrey
Ntsoe,
Piet Kgaswane, Isaac (Ike) Malungane and Ephraim Molefe, returned to
work at 16h00 on 20 November 2009 and found that it
was knock off
time at 16h00. During cross-examination, he contended that the
ultimatum was read at 16h00. He then said that they
returned to the
workshop before 16h00. He then conceded that the ultimatum might have
been read at 15h00. He could not say what
time he was at the gate and
what time he was at the workshop. It was put to him that drivers who
adhered to the ultimatum signed
on from 14h15 at Mogwase indicating
that the ultimatum was read before then. Ultimately he testified that
when he went to the workshop,
it was after they had knocked off and
they went there to fetch their personal things. He also testified
that when he returned to
work a foreman by the name of Barney told
him to return on Monday. No mention was made of Barney in his
affidavit. No rebutting
evidence was led in respect of this group.
[31]
Mr Thabo Molefe stated, in his affidavit, that he was on strike but
that he did not report for duty on 20 November 2009. During
cross-examination, he confirmed that he is stationed at Mogwase and
that he did not report for duty due to transport problems.
He also
stated that taxis only operate from 12h00 between Rustenburg and
Mogwase.
[32]
Mr Kenneth Matuwe stated, in his affidavit, that he was at the
Tlhabane depot when the ultimatum was read instead of the Mogwase
depot where he is stationed. He could not go to work when the
ultimatum was read because it was already late. During
cross-examination,
he could not explain why he did not report for
duty at Tlhabane. No rebutting evidence was led in respect of Mr
Matuwe. That completed
the evidence of the respondents who were
represented by Mr Modisakeng.
[33]
Mr Jackson Pule deposed to an affidavit wherein he stated that on 20
November 2009, he was at the Tlhabane depot although he
is ordinarily
stationed at the Mogwase depot. One of the appellant’s managers
gave him a copy of the court order and ultimatum
to read to the
striking employees at the Tlhabane depot. He read the documents at
approximately 14h45. The employees then went
back to work. He went to
Mr Sefanyetsa’s office where he tried to call Mr Stuurman at
the Mogwase depot to inform him that
he will not make it in time
because the Tlhabane depot is 48km from Mogwase depot. He could not
get hold of Stuurman and spoke
to Chief Letanke, who is an assistant
route controller, and requested him to stand in for him because he
was not in a position
to make it to Mogwase on time. Mr Letanke
agreed. He then called Stuurman and informed him about the
arrangement with Letanke and
the former agreed. On 21 November 2009,
he reported at Mogwase.
[34]
In his evidence –in-chief, he stated that Mr Modisakeng called
him at 13h20 to inform him that the appellant got the
interdict and
that he should wait for Mr Niemandt. During his cross-examination, he
conceded that the majority of employees at
Tlhabane complied with the
ultimatum. At first he said at 15h00. Later his stated that it was at
15h45. When he was asked why he
was at Tlhabane instead of Mogwase he
stated that he lived near the Tlhabane depot and did not have
transport to travel to Mogwase.
He further stated that he was not on
strike but was affected by the strike in the sense that he could not
work when there was a
strike. He could not control the running of the
busses because they were not operating. Although he went to Tlhabane
instead of
Mogwase, he did not report to anyone but was amongst the
striking workers. He conceded that he attended a meeting between the
appellant
and the striking workers at Tlhabane on the 17
th
November 2009 when the workers at Mogwase were not yet on strike.
[35] Mr Fleetwood
testified that during the meeting of the 17
th
November
2009, it was clear that Mr Pule was representing the employees. Mr
Stuurman also denied that he reached an agreement with
Mr Pule to the
effect that Mr Letanke may stand-in for him.
[36]
Mr Johannes Itumeleng Leshi deposed to an affidavit wherein he stated
that he was employed at Mogwase as a diesel mechanic.
According to
him, the court order and ultimatum were read at 15h45 at the Mogwase
depot. At approximately 16h00 he reported for
duty and worked until
16h15 because they knock off at 16h15 on Fridays. During
cross-examination, the bus control register was
showed to him.
According to the said register buses were leaving the depot at 15h11,
15h12 and 15h13. He could not explain why
the buses were leaving the
depot at 15h11 when the ultimatum was only read at 15h45. He
testified that he clocked out at 16h30.
When he was confronted with
the clock records he changed his version and testified that he did
not clock in or out on 20 November
2009. He ultimately testified that
he clocked out at 16h15.
[37]
Mr Dingaan Ngobeni deposed to an affidavit wherein he stated that he
was present at the Mogwase depot when the ultimatum was
read at
approximately 15h30. After hearing the ultimatum, he returned to
work. He clocked in at approximately 15h45 and clocked
out at
approximately 16h15. During cross-examination, he stated that the
ultimatum was read at 15h45 and at approximately 16h30
Mr Silas
Mfikwe finished reading the ultimatum. It was also put to him that
the ultimatum could not have been read at 15h45 when
the buses of
drivers who were also on strike already left the depot at 15h11. He
further testified that he went back to work at
16h15 and worked
overtime and clocked out at 18h18. No rebutting evidence was led in
respect of Mr Ngobeni.
[37]
Ms Nthabeleng Esther Matinke testified that she faxed a sick note
on19 November 2009 which
inter alia
stated that she will not
be fit for work on 20 November 2009. On 23 November 2009, she
submitted the original certificate. The
appellant made her an offer
on reinstatement without back pay which she refused.
[38]
Mpho Gift Mothoagae deposed to an affidavit wherein she stated that
she worked at the Tlhabane depot as a cleaner. She further
stated
that she was present when Mr Pule read the ultimatum at approximately
14h45. She clocked in at 15h00. When she got to the
offices to start
working, the offices were locked and she was unable to perform her
duties. She then clocked out and went home.
On 24 November 2009, she
was given a final written warning by Mr Motitsoe to the effect that
should she participate in unprotected
strike action again, she would
be dismissed with immediate effect. It was put to her in
cross-examination that her version is improbable
because the employer
would not request her to return to work and then lock her out. Mr
Simon Motitsoe who is Ms Mothoagae’s
supervisor disputed her
evidence that she returned to work. He testified that the offices
were not locked.
[39]
Mr Jeffrey Tsheko Sepotokele stated, in his affidavit, that at about
14h30 he left the Tlhabane depot to go and buy food. When
he returned
at 15h30 Mr Sibeko, his foreman informed him that an ultimatum was
read and he failed to comply with the ultimatum.
During
cross-examination, he stated that when he spoke to Sibeko his
colleagues were already gone. Later he testified that Sibeko
did not
tell him to go home but because his colleagues had left he also left.
He stated that knock-off time is 15h45. When asked
why he left at
15h30 he responded by saying that because the people with whom he
worked had already left. He testified that he
and Mr Setshedi left
together to buy food and returned together. He confirmed that they
both spoke to Mr Sibeko. According to him,
there was no caravan
outside the depot.
[40]
Mr Lesego Collins Setshedi stated in his affidavit that on 20
November 2009 at approximately 14h30, he left the Tlhabane depot
to
go and buy food. He returned at approximately 15h45. During
cross-examination, he stated that the caravan outside the depot
did
not sell food. He did not see Sibeko when they returned. The offices
were closed when they returned. According to him, he returned
to the
depot in order to work. He could not explain why he would return to
work when he knew that they were on strike or when he
did not know
about the ultimatum.
[41]
Mr Michael Ndlovu declared in his affidavit that, on 16 November
2009, he informed Mr Motitsoe, his supervisor that he would
request
leave for the afternoon of 20 November 2009 in order to take his son
to hospital. Motitsoe gave him permission. On 20 November
2009, he
participated in the strike from 07h30 to 13h00 after which he left to
take his son to the hospital. During cross-examination,
he testified
that his wife informed him on 16 November 2009 about the child’s
illness. He decided to take the child to the
hospital on 20 November
2009 because he was not going to work during that weekend. He offered
to submit proof of the fact that
he was at a hospital in
Johannesburg. The appellant accepted that he was at the hospital and
did not insist on proof.
[42]
Mr Johannes Motitsoe denied that he had a conversation with Mr Ndlovu
with regard to his son or that he gave him permission
not to be at
work on 20 November 2009.
[43]
Mr Hlapelang Khunou’s version was that he was at the clinic on
20 November 2009 to fetch his TB medication. He testified
that he had
Corrie Viljoen’s permission to go to the clinic. During
cross-examination, he testified that he arrived at the
clinic at 7
and left 12. He could not report for duty due to transport
difficulties.
[44]
Viljoen denied that he gave Khunou permission to be absent from work
on 20 November 2009.
[45]
Mr Simon Niemandt, the appellant’s regional manager overseeing
both depots testified that on 20 November 2009, he was
at Tlhabane.
According to him, the court order and the ultimatum were read at
approximately 13h00. He also requested section leaders
or department
heads to conduct a roll call to see whether the workers returned to
work. A list was compiled of all the employees
who did not report for
duty. On 21 January 2010, he deposed to an affidavit wherein he
stated that on 20 November 2009 at approximately
15h00 he made copies
of the court order and read out its contents to those workers who
were present at the Tlhabane depot at the
time. He could not explain
why Mpho Motwagae received two sanctions for the same misconduct. He
further testified that Mr Moalosi
was at work and that in as far as
the list indicated that he was dismissed, it was a mistake.
[46]
Mr Simon Motitsoe testified that he was the operations manager at the
Tlhabane depot. On 20 November 2009, he worked from 06h30
to 18h00.
He compiled a list of all the employees who were not at work at 15h00
and gave it to Niemandt.
[47]
Mr Hendrick Jansen confirmed that Mr Moalosi reported at 15h00 and
was allocated work. He further confirmed that Moalosi was
not
suspended.
[48]
Mr Albert Snyders testified that he was the depot Manager at Mogwase
and that the ultimatum was read out between13h00 and 14h00.
He, like
Niemandt, deposed to an affidavit on 21 January 2010 wherein he
stated that the ultimatum was read at 15h00.
[49]
The court a
quo
rejected the respondents’ argument to
the effect that their dismissal was procedurally unfair. This finding
of the court
a
quo
is unchallenged.
[50]
On the issue of the substantive unfairness of the dismissals, the
court a
quo
found that the respondents were unfairly
dismissed. The court a
quo
pointed out that Niemandt and
Snyders deposed to affidavits wherein they stated that the ultimatum
was read at 15h00 and the respondents
who were represented by Mr
Mooki testified that the ultimatum was read later than 13h00.
Therefore, so reasoned the court a
quo,
the ultimatum was in
fact read at 15h00. It found that the time of reading the ultimatum
and the time of returning to work coincided
and therefore there was
insufficient time for the workers to return to work.
[51]
The court a
quo
also found that even on the appellant’s
version – that the ultimatum was read at approximately 13h00 –
the dismissals
were still unfair. The court a
quo
was of the
view that two hours to return to work was insufficient because the
respondents were not given proper opportunity to consider
whether
they should return to work and what the consequences of a failure to
return to work would be. According to the court a
quo,
the
fact that the respondents were no longer union members required of
the appellant to give them time to consult with their families.
The
court a
quo
put it thus:
‘
In
these circumstances, it seems to me that fairness required the
respondents to have afforded the applicant’s (sic) the
opportunity to go back home and discuss with their families the
implications of refusing to obey the ultimatum. Put differently
the
individual applicants needed assistance also from their families in
weighing their options in as far as compliance with the
ultimatum was
concerned.
[52]
The court a
quo
also found that the roll call was made in an
inconsistent manner and that the appellant’s evidence, relating
to the roll call,
was not persuasive. The appellant was also
criticised for not producing the roll call list.
[53]
Lastly, the court a
quo
found that irrespective of the weak
explanation tendered by some of the respondents for their absence at
the time the ultimatum
was read, none of them deliberately absented
themselves to “avoid listening to or avoided compliance with
the ultimatum (sic)”
[54]
Mr Orr on behalf of the appellant challenged the court a
quo’s
findings before us. He argued that there is other objective
evidence that support the appellant’s contention that the
ultimatum
was read at approximately 13h00. He further argued that
none of the respondents testified that they had insufficient time to
consider
their options. He submitted that the court a
quo
was
wrong in as far as it expected the appellant to show that some
of the respondents deliberately absented themselves in
orders to
avoid hearing the ultimatum being read.
[55]
It is beyond cavil that the purpose of an ultimatum is to get workers
who are participating in unlawful industrial action back
to work.
Although the participation in an unprotected strike remains a serious
misconduct, workers can avoid the ultimate sentence,
which is
dismissal, by complying with an ultimatum. Those who comply with the
ultimatum may not be dismissed, because compliance
is an act of
atonement. Those who do not comply may be dismissed, after being
heard, because non-compliance is an unacceptable
act of defiance,
especially where the employer had obtained a court order declaring
the strike illegal and therefore unprotected.
It has been said
that an ultimatum is as much a means of avoiding a dismissal as a
prerequisite to affecting one.
See Modise and Others v Steve’s
Spar Blackheath
[2000] 5 BLLR 496
(LAC) at para 149 and 150.
[56]
The ultimatum must be fair and geared at achieving its primary
purpose of getting the workers back to work. Whether an ultimatum
was
fair will depend on the facts of the particular case.
[57]
All the employees who were represented by Mr Modisakeng admitted that
the ultimatum was read at 13h00. This was recorded in
the pre-trial
minute. Those who were represented by Mr Mooki disputed that fact.
Those who were represented by Mr Mooki gave different
times when the
ultimatum was read and contradicted each other in this regard. Mr
Pule and Ms Mothwagae testified that the ultimatum
was read at 14h45
at the Tlhabane depot. Both of them testified that the workers had no
difficulty complying with the ultimatum.
Ms Mothoagae expressly
stated that she had no difficulty complying with the ultimatum. On
the other hand, Mr Sepotokele and Ms
Setshedi testified that they
left the Tlhabane depot at 14h30 to buy food. Mr Sepotokele stated
that they returned at 15h30 whilst
Mr Setshedi stated that they
returned at 15h45. Both testified that on their return the other
workers were already working. It
is clear on their evidence that at
15h45 (latest) the workers were already back at work. This can only
mean that the ultimatum
was read before 15h45 at Tlhabane.
[58]
Mr Leshi and Mr Ngobeni testified that the ultimatum was read at
15h45 and 15h30 respectively. They could not explain why the
bus
control register showed that buses were leaving the Mogwase depot
from 15h11. They could also not explain why the bus drivers
who were
also on strike signed in at 14h15 at Mogwase if the ultimatum was
only read at 15h30 or 15h45. It is clear that the ultimatum
must have
been read at least before 14h15.
[59]
It seems to me that Niemandt and Snyders made
bona fide
mistakes when they stated in their “service affidavit”
that the ultimatum was read at 15h00. Their evidence was that
it was
read at 13h00 at Tlhabane and between 13h00 and 14h00 at Mogwase. The
objective evidence, the admission by the respondents
represented by
Mr Modisakeng and the evidence of those workers who testified that
they were at their workplaces at 15h00 in my
view corroborates their
respective versions that the ultimatum was read before 15h00 at the
respective depots. Approximately 600
workers were on strike. 560 were
at their workplaces at 15h00. This shows that the overwhelming
majority adhered timeously to the
ultimatum. There is in any event no
evidence from any of the parties – except for the mistake in
the affidavits of Niemandt
and Snyders – that the ultimatum was
read at 15h00. The court a
quo’s
finding that the
ultimatum was read at 15h00 is, with respect, incorrect.
[60]
Only eight out of the 600 employees contended in the pleadings, that
the ultimatum was unfair because they did not have sufficient
time to
consider their options. None of them testified about this. None of
them testified that they needed more time to consider
their options
or discuss their situation with their families –assuming that
this would be a justified or legitimate request.
There is no evidence
that the time given to comply with the ultimatum was too short. On
the contrary, even those who contended
that the ultimatum was unfair
testified that they had no problem to comply with it. In my view, the
court
a
quo’s
finding that the respondents had
insufficient time to consider their options is without factual
foundation.
[61]
Mr Orr submitted that the court
a quo’s
finding that where individual
respondents were not at either of the depots when the ultimatum was
read, the appellant was required
to demonstrate that those
respondents had deliberately absented themselves, to avoid compliance
with the ultimatum is too onerous.
A proper reading of the court
a
quo’s
judgment
in this regard does not bear out Mr Orr’s contention. The court
a
quo
did not place any burden on the
appellant neither did it state that the appellant bears the
onus
to prove that they deliberately absented themselves in order to avoid
being present when the ultimatum was read. What the court
a
quo
did
was to state, as a fact, that there is no evidence before it that any
of the respondents deliberately absented themselves in
order to avoid
being there when the ultimatum was read. It did not say that, that
was a requirement. I find no fault in the court
a
quo’s
exposition
of the facts.
[62]
In any event, in circumstances like these, where the employees were
not represented by a union and where there was no strike
committee or
discernible communication channels between and amongst the employees
there must be some indication that the employees
were aware of the
ultimatum. The employer must therefore prove that the employees were
aware of the ultimatum or that they would
reasonably or in all
likelihood have been aware thereof and that they did not comply
therewith. Knowledge of the ultimatum is important
for a finding that
there was no compliance therewith. It would then be incumbent on the
individual respondent to tender an explanation
as to why s/he was not
aware thereof and why s/he did not comply therewith. Where the
employees are represented by a union other
considerations, which are
not relevant for purposes of this judgment, will apply. I now turn to
evaluate the evidence of the individual
respondents.
[63]
Although Mr Nokwane gave different reasons as to why he left the
depot on 20 November 2009 before the ultimatum was read, his
evidence
that he was not there when the ultimatum was read cannot be rejected.
There was no rebutting evidence to the effect that
he was there when
the ultimatum was read. Likewise his evidence that Lucky Molatlhegi
and Shapie Mathabathe were also not at the
depot when the ultimatum
was read cannot be gainsaid. There is therefore no evidence that they
were aware of the ultimatum.
[64]
There is no explanation as to why the following employees did not
comply with the ultimatum: Willy Motshegoa, Martinus Sekete,
Nechodemus Moirapula, SR Modisakeng and Bornwise Mngomane. Their
dismissal was therefore fair. Ms Bertha Mfulwane also purportedly
testified on behalf of a group. It later transpired that she did not
know whether the others complied with the ultimatum or not.
No
explanations were given by them or on their behalf, as to why they
did not comply with the ultimatum. They are Lipkin Lamola,
Titus
Modibedi, Kenneth Kwena, Pinky Matome, Lizzy Khunou and Lucky Mpipi.
Their dismissal was also fair.
[65]
Mr Mfulwane’s version is improbable because she would not be
singled out as a person who did not adhere to the ultimatum
for no
apparent reason. Mr Pretorius’ version is more probable and
credible. It is clear that his evidence that he saw Mfulwane
and
Matome at 16h00 with Spar plastic bags should be accepted. I find
that Ms Mfulwane’s version that she adhered to the
ultimatum is
not only improbable but untruthful. Her dismissal was fair.
[66]
Mr Paul Malekutu testified on behalf of Joseph Phalale, Mathews
Malungwana, Godfrey Ntsoe, Piet Kgaswane, Isaac Malungane and
Ephraim
Molefe. It was clear that Mr Malekutu was not a credible witness.
According to him, the ultimatum was read at 16h00 at
Mogwase. He
could not explain why other workers returned to work at approximately
14h15. He in any event conceded that the ultimatum
could have been
read out at 15h00. If this is so then why did he only return at
16h00? No explanation was given. According to him
a certain Barney
told him to return to work on Monday but he makes no mention of this
in his affidavit. In my view, this group
must all stand or fall on
the credibility of Mr Malekutu’s evidence. Mr Malekutu’s
mendacity as a witness having been
shown, they must all fall by his
evidence. Their dismissal was fair.
[67]
In my view, Mr Pule’s evidence must also be rejected. It is
clear that he was an untruthful witness. All indications
are that he
was one of the leaders of the striking worker. His evidence that he
was not on strike is nonsensical. He works at Mogwase
but was at
Tlhabane when the ultimatum was read. He assisted with the reading
thereof. He knew at 13h20 that the strike was declared
illegal by the
Labour Court. He did not tender his services then neither did he do
so after the ultimatum was read. If he wanted
to, he could have
tendered his labour at Tlhabane or asked that they take him to
Mogwase to report for duty. He went to Tlhabane
on 17 November 2009
with his private vehicle before the workers at Mogwase joined the
strike. The strike commenced on 18 November
2009 at Mogwase. His
evidence that he made arrangements with Letanki to stand-in for him
also falls to be rejected. I also accept
Stuurman’s evidence
that Pule did not make any arrangements with him. There is therefore
no legitimate reason why he did
not comply with the ultimatum. His
dismissal was fair.
[68]
Mr Lashie’s evidence that the ultimatum was only read at 15h45
is rejected. Likewise his evidence that he only got to
the workshops
at 16h00 is also false. He therefore tendered no justification for
his failure to comply with the ultimatum.
[69]
Although Ms Mothoagae’s explanation is improbable, the evidence
is that she was given a final written warning and dismissed
for the
same offence. The appellant could not give an explanation as to how
and why this happened. It is unfair to punish an employee
twice for
the same offence. In my view, the lesser sentence which was imposed
first must, in the absence of any explanation, stand.
Her dismissal
was unfair.
[70]
Mr Sepotokele and Mr Setshedi clearly fabricated their versions.
Initially it seemed as if their versions are in sync. After
cross-examination, it was clear that their version were contrived.
Their versions differ as to the time they returned, whether
they saw
or spoke to Sibeko and whether there was a caravan selling food
outside the appellant’s premises. Mr Setshedi testified
that he
returned after buying food because he wanted to work. This cannot be
because when he left the workers were on strike. According
to him, he
did not hear the ultimatum being read. How could he then want to
return to work when he did not know what was happening?
Their
explanation ought to be rejected.
[71]
Although Mr Ndlovu did not complete a leave a form, the appellant
accepted for expediency, that he took his son to hospital
on 20
November 2009. His evidence is improbable. His wife informed him on
16 November 2009 that his son is sick. He did nothing
about it. On 20
November 2009, he participated in the strike until 13h00 and then
left the Northwest Province to take his son,
who resides in Gauteng,
to hospital. He proffered no reason why his wife could not take the
child to hospital between 16 November
2009 and 20 November 2009. No
reason is given as to why he left so late given that he had no
appointment with any doctor. He also
lied when he testified that
Motitsoe gave him permission to take the afternoon off. Motitsoe
denied giving such permission. It
is in any event improbable that he
would have requested permission whilst they were on an unprotected
strike. It is further improbable
that he would have been given the
afternoon off without signing a leave form. Motitsoe’s evidence
is clear in this regard.
Mr Ndlovu’s explanation ought to be
rejected.
[78]
Mr Khunou’s evidence that he got permission from Mr Viljoen to
be absent on 20 November 2009 was untruthful. Mr Viljoen’s
evidence that he was not Mr Khunou’s supervisor at the time but
Barney Du Preez was unchallenged. In his affidavit, Mr Khunou
stated
that he spoke to Viljoen. In his statement, he stated that he asked
for permission on the 17
th
November 2009 but he testified
that he did so on 19 November 2009. He stated that he went to the
clinic from 07h00 to 12h00 and
could not report for duty due to
transport problems. He however submitted a medical certificate from
the Sunrise Park Clinic to
the effect that he attended the clinic on
20 November 2009. It is also clear on his appointments card that he
attended on 30 October
2009 on which date the appointment for 20
November 2009 was made. His explanation that he was not aware of the
ultimatum is reasonable
and acceptable.
[79]
Mr Ngobeni’s evidence relating to the time the ultimatum was
read is clearly false. He contradicts himself with regard
to the time
he clocked in and out. He even stated that he worked overtime on 20
November 2009 a fact that he did not mention in
his statement. His
version is far-fetched and nonsensical. It ought to be rejected.
[80]
Mr Kenneth Matuwe like Mr Pule could not explain why he did not offer
his service at Tlhabane although he works at Mogwase.
He was aware of
the ultimatum.
[81]
The situation of Ms Matinke has become moot. We were informed that
she was reinstated with full back pay.
[82]
Mr Thabo Molefe’s evidence was that he had transport problems
and did not report for duty on 20 November 2009. He was
not aware of
the ultimatum. Although most employees reported for duty there is no
evidence to gainsay Mr Molefe’s evidence.
His explanation
cannot be rejected as false or improbable because it is not clear how
the other employees went to work. His dismissal
was unfair.
[83]
The court
a
quo
ordered the reinstatement of the
respondents from 23 October 2012 after considering the fairness of
reinstatement from date of
dismissal. It is not clear from the
judgment how the court
a
quo
settled on that date. Mr
Orr did not request us to interfere with that date if we should order
the reinstatement of the respondents.
I am of the view that the
decision as to whether the reinstated employees should now, after so
much water has flown under the bridge,
be issued with final written
warnings is best left for the employer to take.
[84]
I accordingly make the following order:
84.1. The appeal is
upheld to the extent set out below.
84.2. The order of
the court a
quo
is set aside and replaced with the following
order:
“
(i)
The dismissals of Joseph Nokwane, Skapie Mathebula, Lucky Molatlhegi,
Mpho Mothoagae, Thabo Molefe and Scotch Khunou were substantively
unfair. The appellant is ordered to reinstate them with effect from
23 October 2012 with full salary and benefits.
(ii)
The dismissal of all the other respondents was substantively and
procedurally fair.
. (iii) There is no
order as to costs.”
84.3.
No order is made as to costs of the appeal.
_______________
C J MUSI JA
Waglay
JP and Dlodlo AJA concur with Musi JA
APPEARANCES:
FOR
THE APPELLANT: Advocate Orr
Instructed
by Bowman Gilfillan Inc (sandton)
FOR
THE RESPONDENTS: No appearance.